Careful What You Wish For: A Critical Appraisal of Proposals to Rebuild the Labor Movement

Alarmed at declining union density and frustrated with the National Labor Relations Act, many worker advocates want to ditch the NLRA, forsake traditional unions, and start the labor movement afresh. Ideas include making “Alt-labor” a new launching pad; replacing face-to-face union building with high-volume digital organizing; applying the Civil Rights Act to union activity; adopting “members-only” bargaining alongside majority rule and exclusive representation; letting unions make non-members pay for handling their grievances; and even conceding a national “right-to-work” law so unions will try harder to win workers’ support. Social movements should always examine new strategies. But they should not let novelty overwhelm judgment. Many of these new ideas are clever in theory, but in practice would undermine unions and shift more power to employers and anti-union political forces.

Alt-labor

Let us look at each of the innovations suggested for labor’s revival. Workers’ centers and emerging alliances of taxi drivers, domestic workers, day laborers, food chain workers, restaurant employees, freelancers, and other Alt-labor groups are exciting initiatives. Same for Our Walmart, Fast Food Forward, and the Workers Lab, New Organizing Institute, and other social media ventures.

Despite many accomplishments, Alt-labor has not solved the test of creating stable, mass, dues-paying organizations. Romantics say that is great, they will not be slow-moving bureaucracies like unions. But employers would be happy to deal only with small, dispersed, resource-stressed groups that might give them a hard time in the public relations arena but can never wield serious countervailing power. And much of Alt-labor would not get the traction it has without Old-labor. Unions in the traditional labor movement are often their main backers.

Other voices tout social media and online organizing instead of face-to-face efforts inside the workplace. Declaring traditional unions doomed, the Workers Lab has set up a Silicon Valley- inspired “innovation accelerator” for workers to bypass them. Its first project is Coworker.org, where employees can share complaints and pressure their bosses with online petitions.

The Century Fund calls for “virtual labor organizing” that skips traditional unions and organizers. “Perhaps most importantly,” it says, “discussions and information in this virtual organizing platform would remain private and anonymous from the employer.” Unions could change methods, too: “Rather than just engaging in resource-intensive retail organizing, they could become wholesalers . . . investing in large-scale promotion of an on-line resource, backed by call centers and a significant network architecture standing behind this powerful new tool.”1

Social media and clever online messaging are nice extras. But painless digital organizing cannot prevail when workers hear only from managers and supervisors at work, while their defenders are online. Leaders build unions by standing up to management and winning co- workers’ confidence that they have “somebody to back me up” inside the workplace.

Union Organizing and Civil Rights

Making discrimination for union activity part of the Civil Rights Act is a creative idea. But no Congress in the foreseeable future is going to take that step. Advocates face a steep hurdle overcoming the argument that anti-discrimination laws aim at innate qualities, not choices.

Some Title VII lawsuits win big damage awards, but many more go nowhere. Winning them is daunting because they are so fact-intensive and fact-dependent. Employers never concede they fired workers for organizing. They proffer other reasons like absenteeism or insubordination or poor performance. Then it is off to litigation in federal courts—an even slower and costlier forum than the NLRB—to see who is right.

A readier remedy already exists under the NLRA: getting injunctions for immediate reinstatement of workers fired for organizing. Now, such injunctions are extraordinary steps used in a handful of cases. Making them standard remedies can get most fired workers right back to union building.

Members-Only Bargaining

Advocates of “members-only” unionism argue that supporters can be found in practically every workplace in the country. So let us change the law and force employers to bargain with them, even if they cannot muster majority backing among their co-workers. Then, when unions show their bar- gaining prowess, non-members will quickly join to make majorities. Sounds great in theory. But

members-only minority unionism would fracture and weaken the labor movement, not grow it. Here are four reasons why.

Craft Unionism

Craft union mentality is still alive and well in the American labor movement. Without the glue of majority rule and exclusive representation, the temptation for highly skilled groups to form their own unions often would be irresistible. Elite employees might well stop after using their bargaining power to capture higher pay and benefits. They would see no need to create majority unions that have to account for less-skilled workers’ needs.

OK, so let less-skilled employees form minority unions, too. Except now, they would be at odds with skilled groups, with little bargaining power to make gains. All these tensions occur within existing bargaining units. But the tensions are resolved through democratic dynamics of a unified organization, not two groups battling each other—or three, or four, or more, as each discrete group forms its own minority union.2

Inter-union Rivalry

Members-only unionism would provoke new rounds of fighting for pieces of the workplace action. Compulsory bargaining for minority unions would have to apply across-the-board. If the Machinists recruit 30 percent support and get to bargain, the Teamsters and Carpenters might tell themselves they can get 30 percent, too, creating three minority unions in a workplace. A “hands-off” agreement to leave the field just to one might prevent such conflicts. But experience suggests that unions jump when they see an opportunity for new members.

Nothing guarantees that competition will ratchet up pay and benefits, either. Employers have cards to play. They can pit unions against each other by driving deals with the weakest and daring others to mount minority strikes.

Downside Bargaining

Advocates envision a rosy scenario where minority unions get extra wages and benefits from employers and convince co-workers quickly to join for a majority. Just as likely, however, is employers’ seizing a chance to stick minority unions with inferior terms.

No employer will give a minority union group better deals than non-union counterparts working alongside them in the same jobs. That just leaves employers open to non-members’ charges of discrimination under the NLRA, or under equal pay statutes if the union is mostly men, or under Title VII if the union is mostly white.

No employer will give a minority union group better deals than non-union counterparts working alongside them in the same jobs.

But minority unionism gives employers legal openings to stick represented workers with worse conditions. Lawyered-up managers can accomplish this by leaving no trace of anti-union bias and saying that transaction costs such as bargaining time, grievance meetings, arbitrations, legal fees, and others require lower pay for union members. Without a smoking gun proving anti-union motivation, such insistence is perfectly legal.

The minority union can strike in response. And then what, when the majority of workers report to work and the employer hires perma- nent replacements to take strikers’ jobs? Do we expect that in the same labor law reform that gives us members-only bargaining and union activity as a civil right, we’ll abolish the permanent striker replacement doctrine? These are law professors’ pipe dreams. I know, I am one, and I have dreamt them, too.

Company Unions

Multiple minority unionism also would open the door to an abuse that afflicts labor movements in many countries: unions covertly fostered by employers to blunt real unions. Employers do not always have to push hard, either.

Most workplaces have employees willing to side with employers against combative unions. Enabling them to create their own unions would bypass labor law strictures against company unions. They are certainly entitled to their views. But in our labor law system, they have to

plug their softer approaches by running for leadership in the majority union.

Union moderates often prevail against union militants in leadership contests. And militants win in turn. In-house debates and alternating leader- ship can be a healthy dynamic in a democratic union—a lot healthier than disparate moderate and militant unions spending more time fighting each other than confronting management.

Charging for Grievances

Some labor allies have proposed a modified version of members-only representation in right-to- work states. Unions could shed the “duty of fair representation” and leave free riders to fend for themselves. If they want to invoke grievance and arbitration proceedings, they would have to pay for union officials’ time, lawyers’ time, arbitrators’ fees, and other costs.3

For starters, such a scheme would alienate non-members even more, making them less likely to turn to their unions for help. It also opens the door for employers to tell members, “Why are you paying dues? You only have to pay for arbitration, if it comes to that. But look at all those grievances that the union drops. You’re better off dealing with me.”4 Nonmembers will take that chance, and fence-straddling union members will be tempted to jump ship. A “you’re better off as a non-member” culture is more pernicious than free riding.

Even more menacing is the risk of losing representation entirely. Non-members are often a large minority in right-to-work states, where the real goal is weakening unions, not protecting individual rights. Under the law, employers are not allowed to tally non-members and conclude that unions no longer have majority status, and thus withdraw recognition. Labor law assumes that non-members might still want protection of collective agreements and representation in grievances, even if they do not pay dues. Employers cannot gauge majorities based on the number of cheapskates in the workplace.

But allowing non-members to renounce representation would give employers a perfect count of those who want unions to bargain for them and those who do not. Now the issue is not: do you want to pay dues? It is: do you want union representation? When non-membership hits 51 percent, the employer can automatically withdraw recognition and force a new election, triggering a new “Vote No” campaign in all the aggressive, anti-union ways the law lets them, and get rid of the union altogether.

Abandoning exclusive representation in right-to-work states would only weaken them more. Better for unions to do the best job they can in bargaining and enforcing the contract under duty of fair representation rules, and patiently trying to recruit non-members. When I was a union staffer servicing GE and Westinghouse factories in right-to-work Virginia in the 1970s, I watched leaders do exactly that, bringing their local unions from minority to solid majority status.

Unions as Insurance Providers?

One final point: charging non-members for grievance-handling and arbitration reinforces the view that the unions are just insurance com- panies and members’ dues are insurance premiums. But unions as insurance providers is the antithesis of trade unionism. Unions are workers’ means of checking employers’ abuse with countervailing power. But they never will fulfill this role if we concede in principle that they are simply providing insurance in exchange for premiums called dues or agency fees.

A Right-to-Work Trade-Off

Some labor advocates even go so far as to sug- gest accepting a national right-to-work law in exchange for one or more of the labor law inno- vations discussed here.5 But the idea that a national right-to-work law would galvanize unions into new organizing triumphs overlooks the social and economic reality that workers and their unions confront.

Employers’ real goal is not an end to agency shop payments by non-members (who can never be forced to join a union). Dues are a sideshow. The real target is collective bargaining itself.

The National Right-to-Work Committee calls exclusive representation

monopoly bargaining . . . a special coercive privilege given to unions by federal law . . . every worker loses his or her right to negotiate directly with the employer on his or her own behalf . . . trampling of individual rights . . . coercion to herd workers into collectives against their will . . . enthrones union-boss control over workers . . . Full worker freedom of choice means repeal monopoly bargaining.

In February, Senator Marco Rubio introduced legislation reflecting this view. The Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act would abolish exclusive representation and let workers opt out of collective agreements for individual employment contracts. Depending on their indi- vidual bargaining power, such contracts could be better or worse than collectively bargained terms. This brings us right back to the “inequality of bargaining power” cited in the NLRA Preamble: between individual workers and “employers who are organized in the corporate or other forms of ownership association.”

Managers and supervisors have myriad ways to reward trusties and skewer union adherents, corroding union support. Highly skilled employees could renounce the union contract to seek higher pay. Correspondingly, unskilled workers could agree to lower pay for promises of job security or some other benefit they prize, like working from home or leaving early when they finish their tasks, compared with union members kept at work under a “rigid” contract.

It is an easy but false assumption that union security clauses make unions complacent.

It is an easy but false assumption that union security clauses make unions complacent, and right-to-work will shock them into great new advances. A national right-to-work law is a gravedigger for unions, which is why propo- nents want it so badly. Labor advocates should reject it and continue the hard political struggle to elect governors and legislatures who will reverse state right-to-work laws.

In 1932, the president of the American Economic Association said the labor movement was dying and would disappear in a decade, except for a few pockets of guild-style niche unions.6 Sound familiar? Instead, the labor movement tripled in size.

History does not repeat itself. Unions are not on the cusp of a massive organizing upsurge. But labor’s lot ebbs and flows over long cycles. Recent organizing breakthroughs among tens of thousands of adjunct professors, airline pilots and service agents, school bus drivers, port truck operators, meatpacking workers, and even defense plant workers in right-to-work Texas and writers at Gawker.com reflect an enduring need for “somebody to back me up” at work.

Building new Alt-labor groups and exploring innovative labor law reforms are valuable projects. But labor’s critical advocates seem to fear not being taken seriously unless they join the “unions are doomed” chorus. Sometimes, they go even further, disdaining traditional unions as sclerotic, detached, co-opted, and otherwise useless, without analyzing differ- ences among and within them.

Labor’s critical advocates seem to fear not being taken seriously unless they join the “unions are doomed” chorus.

With all their flaws, these are the organiza- tions American workers built over more than a century’s time in the face of capital’s superior power. To survive and make gains, they have needed the force that comes with majority sta- tus, the unified voice that comes with exclusive representation, and the financial and institu- tional stability that come with predictable dues. Multiple minority unions would likely devolve into craft unions, Anglo unions, African-American unions, Latino unions, immigrants’ unions, and unions based on other fault lines in the working class. And not least, a significant “company union” or “no union” option. In contrast, exclusive representation once a majority is achieved lets unions get employers to the bargaining table, confront, and overcome their own internal divisions to forge unity in support of union goals, and speak with one voice in workers’ defense.

American workers still need conventional unions. Let us renew and build them, not disdain them. A Gawker writer nailed it, shortly before their “Yes” vote to organize: “A union is the only real mechanism that enables employees to join together to bargain collectively rather than as a bunch of separate, powerless entities.”7

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of inter- est with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

See Mark Zuckerman, Richard D. Kahlenberg, and Moshe Z. Marvit, “Virtual Labor Organizing: Could Technology Help Reduce Income Inequality?” (The Century Fund, June 2015), available at http://apps.tcf.org/ virtual-labor-organizing.

Even the German system, seen by many Americans as the labor relations ideal, now is being splintered by minority skilled groups breaking away from larger bargaining units for separate, specialized deals. See “Germany Seeks to Put a Lid on Labour Unrest,” Financial Times, May 19, 2015, available at www.ft.com/cms/s/0/bc3292e8-fe1a-11e4-8efb-00144feabdc0.html; Jeevan Vasagar, “Germany Moves to Limit Union Powers after Wave of Strikes,” Financial Times, May 22, 2015, available at www.ft.com/cms/s/0/d89d2c82-008f-11e5-b91e-00144feabdc0.html.asdfasdfasdf

Most union grievances do not go to arbitration. Few duty-of-fair-representation lawsuits are brought by non-members complaining of discriminatory treatment. Most are brought by members upset that unions did not take their case to arbitration. Unions almost always win these lawsuits because legally they have discretion not to waste resources on unwinnable arbitrations.

See Catherine L. Fisk and Benjamin I. Sachs, “Restoring Equity in Right-to-Work Law,” UC Irvine Law Review 4, no. 2 (2014): 857-59. Tom Geoghegan, for example, says, “If right- to-work laws do lead to scrapping the old model—if they lead to a new era of labor advo- cacy and militancy—we may end up saving the middle class.” See Thomas Geoghegan, “Why the 2016 GOP Race May Be All about Taking Down Unions,” Reuters, May 6, 2015, available at http://blogs.reuters.com/great- debate/2015/05/05/why-the-gop-2016-race- may-be-all-about-taking-down-unions/.

. Cited in Raymond L. Hogler, The End of American Labor Unions: The Right-to-Work Movement and the Erosion of Collective Bargaining (Santa Barbara: Praeger, 2015), 183.